On appeal from the Superior Court, Appellate Division.
For remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None.
[98 NJ Page 259] In this case a moratorium on real estate development was imposed by defendant, Hackensack Meadowlands Development
Commission ("HMDC"), for the purpose of completing studies to determine the feasibility of a food distribution center. The moratorium, covering about 550 acres of meadowlands, included approximately 115 acres of undeveloped land owned by plaintiffs, Schiavone Construction Co. and Schiavone North Bergen Realty, I, Inc. ("Schiavone").
Schiavone challenged the moratorium in the Appellate Division on the grounds that the bar on development and construction effected an unconstitutional taking, was ultra vires and violative of the land use statute, and was arbitrary and capricious. The Appellate Division rejected Schiavone's claims. Subsequent to the Appellate Division decision, HMDC extended the moratorium on several occasions, and it was in effect when the case was argued before us. Following oral argument the moratorium was terminated. Schiavone now claims that the subsequent extensions refute the basis upon which the Appellate Division upheld the constitutionality of the HMDC action. It argues, further, that the recent termination of the moratorium at most affects damages but does not render the taking constitutional.
We now determine that the case should be remanded for further proceedings to be undertaken in the Superior Court, Law Division. We decline to undertake further review on the merits of the issues presented at this time because the factual basis upon which the Appellate Division relied has substantially changed since the date of that court's decision. The underlying record is not sufficiently settled for purposes of appellate review and, in addition to the issues raised initially on this appeal, there may be other issues to be resolved in light of the subsequent events. In order to guide the court and the parties on remand, and to explicate our decision, we note several matters.
The HMDC is empowered under N.J.S.A. 13:17-1 to -86 to oversee the coordinated development of approximately 21,000
acres of marshland located through 14 municipalities in northern New Jersey. In 1977, a United States Department of Agriculture study indicated that a portion of the meadowlands area might be suitable for a food distribution center. In October 1979, following a preliminary investigation, the HMDC concluded that a comprehensive study was necessary to evaluate the feasibility of constructing such a food center.
In March 1982, in order to proceed with its own construction plans affecting some of its property in the meadowlands, Schiavone applied to the HMDC for a zoning certificate seeking a use and bulk variance. While the disposition of this zoning application was pending, the HMDC applied to the United States Department of Commerce for a grant to be used for a development design analysis of the food center. On December 22, 1982, the HMDC granted Schiavone's bulk and use variance. Soon thereafter, the HMDC received the funds it had requested to conduct its comprehensive study.
In April 1983, the HMDC adopted a resolution authorizing a feasibility study for the proposed food distribution center and directing that all development applications be held in abeyance until the agency's next regular monthly meeting. Pursuant to this resolution, action on Schiavone's application was withheld. Thereafter subsequent resolutions were adopted, the purpose of which was to enable the HMDC to complete its feasibility study and the net effect of which was to place a freeze on all land development in the covered area. The HMDC then anticipated that the study would be completed by November 1, 1983. On July 18, 1983, the Legislature enacted a statute, L. 1983, c. 272; N.J.S.A. 13:17A-1 to -45, which authorized the creation of a new agency, the Hackensack Meadowlands Food Distribution Center Commission, to be responsible for implementing the food center project, if the HMDC made a favorable recommendation of the project to the Governor before January 1, 1984.
Schiavone filed a notice of appeal in August 1983 challenging the temporary development moratorium ...